Back in December I traveled to Pasadena to observe the oral argument in the en banc appeal of Google v. Garcia, a case I filed an amicus brief in on behalf of Techdirt and the Organization for Transformative Works. (Actually, I ultimately wrote two briefs, one in support of the en banc appeal being granted and one as part of the appeal once it was.) After the hearing I wrote a synopsis of the arguments raised during the appeal on Techdirt (originally titled, “Celine Dion And Human Cannonballs“), which I’m now cross-posting here:Continue reading »

Earlier this week I published an op-ed at Al Jazeera America on the latest news from the Oracle v. Google litigation. Of note, a few weeks ago the Court of Appeals for the Federal Circuit ruled that Google had infringed on copyrights Oracle apparently had in its APIs for Java. My column explains in more depth what’s so problematic about this ruling – particularly as it bears on future innovation – but I want to highlight one particular point I made in more depth here:

[T]he court left open the question of whether Google’s use of the APIs was permissible under the doctrine of fair use. But having to hope that fair use might provide a defense for copyright infringement creates a chilling amount of uncertainty for the innovator. As noted copyright academic Lawrence Lessig famously observed, “Fair use is the right to hire a lawyer.” In other words, the costs to innovate dramatically expand when you need to defend what you’ve developed on the basis of fair use. It is much better for all who depend on APIs to innovate for them not to be copyrightable at all, as there will never be a need to defend one’s use against claims of infringement for something that couldn’t be infringed in the first place. (emphasis added here)

A. Letters are indeed presumptively protected by copyright. Generally speaking, pretty much anything that’s at all original (not necessarily innovative, but just the author’s own writing) and longer than several words is indeed copyrighted the moment it’s written down.

immediately to this:

B. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a “fair use” of the work. Here’s a quick run-through of the four fair use factors, and how they apply to such uses of cease-and-desist letters…

My point here is not to pick on Eugene Volokh. His ultimate conclusion of non-infringement is reasonable and well-supported by his fair use analysis. The problem, though, is that in getting to that conclusion I think he made a mistake many others are inclined to make: fair use does not rebut a presumption of copyrightability; it only potentially rebuts a presumption of infringement.

This distinction between presumptions of copyrightability and infringement is important because, as the op-ed says, if there is no copyright there can be no infringement. Thus it’s extremely important not to short circuit that initial analysis as to the former. Copyright can be an extremely potent weapon, but only when it actually exists. Failing to fully consider whether it does would be as foolish as defending against a gunman it turns out is only armed with a twinkie. Although as Volokh suggests copyright can very easily apply to many if not most original works, as the Oracle case discussed, it definitely doesn’t apply to all of them. Like the lower court had found in that case, copyright statute and doctrine explicitly exempt certain original works from copyright and for very good reasons, reasons that we undermine when we presumptively credit a work with more copyright than it may deserve.

People sometimes treat copyright law as though it’s a fixed constant in the universe, like gravity. First the Earth cooled, then the dinosaurs came, and then we got copyright. But that’s not the case at all, and it’s important to remember this when we think about what’s gone wrong with the law and how to make it right. Copyright is a relatively recent invention, born out of a particular cultural background and designed to solve a specific problem at a particular point in history. While we might continue to value what it purports to do we aren’t slaves to its precepts: when copyright law no longer ably solves the original problem, or, indeed, when it creates new ones, we need not wring our hands in frustrated woe. If a law has turned into something that no longer works for us then we should feel free to come up with something else that does.

In order to figure out how to move forward it helps to look to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the “Statute of Anne,” a law passed in the early 18th Century England to replace an earlier law that gave the government complete control over everything that was published. Naturally this earlier law led to a great deal of censorship, and the push for democratic reform near the end of the 17th Century led to demands that it be changed to something less stifling to the marketplace of ideas.

The result was the Statute of Anne, a law described as “[a]n Act for the Encouragement of Learning.” While the law it replaced had been designed to limit what knowledge was available to the public by giving permission to publish to just a few publishers approved by the king, this new law was designed to stimulate the dissemination of knowledge by giving everyone the ability to control how what they wrote was published themselves.

The statute did this by granting authors a “copy right” so that they could have first crack at exploiting the market for the works they created and not be at the mercy of publishers who might otherwise help themselves to these works and keep all the profit for themselves. A common rationale for copyright is that people won’t create if it won’t ever be worth their while to, so if we want to make sure we do get a lot of creative output we need a system that makes it at least theoretically economically viable to create.

But as we look at our modern copyright law, the distant progeny of the Statute of Anne, it is worth questioning the assumptions wrapped up in it. For one thing, it’s worth questioning whether and to what extent people create only when there is a profit motive. The reality is people create all the time, even when there’s no guarantee or expectation of ever being paid for it, and often these works can be just as good, if not better, than the ones created by people who are being paid. Furthermore, despite what some advocates for stricter copyright law suggest, copyright has never been a promise of financial success. In fact it’s sometimes been a barrier to it, and there are many authors and artists whose influence and commercial appeal took off only after the copyrights on their works had expired and the public could finally get affordable access to them.

It’s also important to recognize that the Statute of Anne sought to achieve its stated goal of encouraging learning in a way that very much reflected the Western European tradition of disseminating knowledge through the written word, and in response to the monopolistic power publishers had at the time to be gatekeepers over that knowledge. But it’s not the only way to skin this particular cat: in other parts of the world oral traditions and norms that encourage copying have allowed cultures to flourish in their own local idiom, without the need for copyright. So when we think about this law we need to recognize how much it reflects the unique time and place from where it arose and not deprive ourselves of the lessons of openness these other approaches teach us. Copyright is not the only solution to promoting the progress of arts and sciences, and it should not be treated as sacrosanct and immune to reform of its increasingly rigid rules, particularly when its current form is no longer reliably achieving its desired end.

The idea behind the Statute of Anne, which was echoed in the US Constitution a few decades later, is that society is better off when it has access to as many works of authorship as possible. But as EFF and many others have described this week, the monopolies copyright law grants have gotten broader in their scope and application, longer in their duration, and ultimately less effective, if not completely counter-productive, in encouraging more creativity and enabling the public’s access to the fruits of that creation. The irony is that as a result, like with the period before the Statute of Anne, we find ourselves in a time when government regulation is actually constricting dissemination of knowledge, rather than enhancing it.

But law is not immutable; indeed, the very existence of the Statute of Anne shows how much it can change when it needs to. When, as now, a law no longer fulfills its objectives, it’s time to reshape it into something that does. It’s time to fix copyright law so that it can finally get the job done that it was always intended to do.

Many posts here talk about laws that criminalize technology use and development. But what happens when there is no law criminalizing that use or development, but it is nonetheless prosecuted? We are seeing that happen in California with state Attorney General Kamala Harris proudly crowing about the arrest and indictment of three brothers for “conspiracy,” “receiving stolen property,” and “grand theft” as a result of running a website that allegedly allowed users to watch movies and TV shows. The only problem: there is no law in California empowering Harris to prosecute any of what she claims the brothers did. There is no law anywhere that does.

But even if we were to describe the making infringing copies of digital works as “theft,” only federal law can speak to the consequences of having made (or enabled the making of) these infringing copies. This is because the federal law is not actually designating something as property — of the sort which could then be stolen — but instead is granting a series of exclusive rights recognized under federal law that could potentially be infringed, as also defined by that same federal law. With only a few narrow exceptions inapplicable here, the establishment, reach, and protection of these rights falls entirely within the purview of the federal government to both establish and enforce, and, moreover, that same federal law explicitly pre-empts any attempts by the states to do the same.

As attorney general, Harris is charged with enforcing California’s laws, but her enforcement powers are inherently limited to those laws. She has no power to make up laws not put on the books by the California legislature (either because it didn’t, or, as discussed above vis a vis pre-emption, because it constitutionally couldn’t) and then go out and enforce them. But that’s what she’s done here. She might as well have arrested these two men for breathing, which there’s no law in California prohibiting either. Despite there being no law for her to enforce, she nonetheless has had these people arrested, seized their actual, tangible property, destroyed their business in a way arguably no law, but especially not California law, would permit, and upended their lives and the lives of their families by throwing them into this Kafkaesque prosecutorial nightmare. What makes it so especially troubling was that even if these brothers had sought counsel from qualified attorneys before engaging in the acts for which they are now being prosecuted, no attorney would ever have been able to have advised them of such prosecution ever being a risk. The criminality Harris is pursuing is born entirely of her imagination, not through the legislative machinations of our representative democracy, thereby leading to a state of affairs that is incompatible with the notions of due process and fair play our system of justice is supposed to preserve.

Even more unseemly, her press release openly admits to her having pursued these men in conjunction with and at the behest of the Motion Picture Association of American (MPAA), thus making her wrongful exercise of prosecutorial power even more abusive. If what these men were doing were truly wrongful as recognized by copyright law, the MPAA was fully capable of seeking the civil remedy for this potential wrongfulness that copyright law allowed. It did not need to wield the enormous power of the state against these people, and it was chillingly inappropriate for them to have attempted it — and even more chillingly appropriate for the state to have allowed it. Yes, there are certain situations where we do allow private injuries to be pursued and punished by state organs (see, e.g., actual theft of actual property) but copyright infringement has never, for very good historical and policy reasons, been one of those alleged injuries where we left it to the government to seek redress, except in very narrow circumstances. And even in those circumstances, the power to prosecute was left to federal prosecutors, not every politically ambitious state attorney general more eager to score points with future campaign donors than adhere to her constitutional limits with a power-grabbing act ultimately more harmful to society than anything alleged to have happened here.

One such provision can be found at 18 U.S.C. § 1030(g), which creates a civil cause of action for a party claiming to be aggrieved by the purported wrongdoings described in subsection (a). While civil causes of action are generally beyond the scope of this blog, having a civil cause of action buried in a statute designed to enable criminal prosecutions can be problematic for defendants facing the latter because the civil litigation, as it explores the contours of the statute and its internal definitions, tends to leave in its wake precedent that prosecutors can later use. Which is unfortunate, because how the statute may be interpreted in a civil context — which inherently can only reflect the particular dynamics of the particular civil dispute between these particular private parties — reshapes how the statute will be interpreted in a criminal context. Especially with a law like the CFAA, whose language always tempts excessive application, these civil precedents can vastly expand the government’s prosecutorial power over people’s technology use, and easily in a way Congress never intended. One should also never presume that the outcome of a civil dispute correlates to a result that is truly fair and just; miscarriages of justice happen all the time, often simply because it is often so difficult and expensive to properly defend against a lawsuit, especially one asserting a claim from such an imprecisely-drafted and overly broad statute like the CFAA.

It’s become clear that I will need to talk more about copyright policy in general on these pages, even if in a not-particularly-criminal-law context. As we evaluate criminalizing acts involving technology that cause “harm,” and since some of that notion of harm is predicated on our notion of copyright, it’s important that we truly understand where the concept of copyright comes from and what policy objective it is supposed to achieve. Particularly because it’s a fair question as to whether modern copyright law still achieves those objectives, or instead potentially represents its own harm.Continue reading »

Last week the BBC contributed its thoughts to the W3C committee contemplating the Encrypted Media Extensions Proposal to the HTML standard, which would allow for more standardized video viewing across multiple platforms. After establishing its bonafides as a source of Internet video broadcasting, it got to the point. The proposal, it said, was was overall a helpful one as far as the standardization was concerned. Technological fragmentation is a problem for someone who wants to make sure their video is viewable to a wide audience. Despite that enormous benefit, however, the BBC could only support the Proposal if it incorporated a DRM standard such that the BBC could pointedly control the retail market for its programming.

It’s worth questioning whether manipulating markets ultimately enlarges them — or, instead, potentially reduces them — but that’s not a subject for these pages right now. The problem was how the BBC required the proposal to be changed in order to ostensibly enable such manipulation:

The proposed Encrypted Media Proposal looks to be a useful starting point. However, the BBC is unlikely to be able to use any such mechanism unless we feel that it is sufficiently secure that there would be the possibility of legal action in the event of bypassing it.

This is not an easy qualification: the W3C is an international body, and laws on bypassing technical protection measures vary significantly from country to country. In this instance the BBC would be looking for such a mechanism to be secure enough in the UK that it would be a “effective technical protection mechanism” under section 296zb of the Copyright, Designs and Patents Act 1988 (as modified by the Copyright and Related Rights Regulations 2003). We expect that other providers will look for similar assurances in their own territories, such as the anti-circumvention provisions in the Digital Millennium Copyright Act in the United States. (emphasis added)

To summarize, the BBC, “the world’s leading public service broadcaster,” “established by a Royal Charter” and “primarily funded by the licence fee paid by UK households” with a “mission […] to enrich people’s lives with programmes that inform, educate and entertain,” has just lobbied an international technical standards organization charged with “lead[ing] the World Wide Web to its full potential by developing protocols and guidelines that ensure the long-term growth of the Web” such that it enables “involves participation, sharing knowledge, and thereby building trust on a global scale” to make its standards such that people could be imprisoned for using that very technology in a way the BBC did not like.

True, perhaps the BBC was only contemplating there being civil penalties, which is problematic as well. But both the DMCA and section 296zb of the Copyright, Designs and Patents Act 1988 allow for state criminal enforcement when people circumvent technologies designed to control access to content, regardless of how legitimate that access would be.

In 1998 the Digital Millennium Copyright Act amended U.S. copyright law in a few key ways. Of most relevance here is the additions it made to 17 U.S.C. §§1201 et seq., which includes the provision:

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” §1201(a)(1)(A)

If one does, they can be liable for damages, §1203(c), or, more saliently for this blog, fines of $500,000 and/or 5 years imprisonment for the first offense and $1,000,000 and/or 10 years for subsequent ones. §1204(a).

It was not completely unprecedented in the pre-digital age to penalize acts that at their essence were about doing something without permission. Trespass, for instance, can be criminally prosecuted if someone has entered another’s real property without their permission. But (per the Model Penal Code § 221.2) it is typically prosecuted as a petty misdemeanor, commensurate with the negligible resulting harm. In instances where more serious harm resulted, a harm that could be properly measured in real word dimensions, such as the deprivation or destruction of real or immovable property, then a separate crime could be charged, such as theft – one targeted to address that violent sort of outcome. But even in those cases the crime and its commensurate penalty would hinge on the resulting harm, not the underlying lack of permission (see, e.g., Model Penal Code explanatory note §§ Sections 220.1-220.3). On its own, merely doing something without permission has not been something US law has sought to punish with serious charges carrying lengthy prison sentences.

In Aaron Swartz’s case, however, while his actions, even if true as alleged, resulted in no more measureable harm than an ordinary trespass would have, he was nonetheless charged with multiple felonies.Continue reading »